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R (Hysaj & Ors) v Secretary of State for the Home Department [2017] UKSC 82
OTS Solicitors is highly ranked in the Legal 500 and one of the most respected, successful niche law firms in London, specialising in immigration, commercial, civil litigation, employment, and family law. We also provide immigration consultancy and legal advice to nationals in the Middle East, South East Asia and Africa.
Yesterday the Supreme Court handed down an important decision which will affect those who have had their grant of British Citizenship declared null and void by the Home Office. A consent order was granted, overturning the nullity of the British Citizenships.
It is estimated that around 80,000 refugees fleeing from war-torn former Yugoslavia settled in the UK. However, around ten years ago, the Home Office discovered that many of those Asylum seekers where in fact economic migrants from neighbouring Albania. Taking advantage of the confusion, they claimed fake Kosovar identities and were granted Asylum in Britain.
One genuine Asylum seeker told the Evening Standard at the time the fraud was discovered:
"It's been an open secret for years that thousands of Albanians were getting refugee status here by saying they were from Kosovo. It used to be the fast-track route into Britain and lots of people took it.
"There was a network that included traffickers and intermediaries. People were told to say they were from Kosovo – it never failed."
Many of the Albanians who had come to the UK now thrive in the community. They have jobs, businesses, mortgages and their children go to school and know no other home but England. In addition, many of these children had their British Citizenship nullified, because their parents entered the UK via deception prior to them being born.
There are other serious consequences of having citizenship declared a nullity. For example, to vote in general and local elections, you must be a British Citizen. It is an offense under the Representation of the People Act 1983 (the Act) for someone to vote in an election in which they know they are not entitled to vote. It could be argued that, if a person knowingly obtained British Citizenship by deception, and it could therefore be declared a nullity, they committed an offence under the Act.
It is believed that since the beginning of the investigation, the Home Office has sent around 300 letters to Albanians living in the UK, and many of these people have had their British Citizenshipwrongly nullified.
What were the facts of the case?
The Appellants were Albanian citizens who entered the UK during the 1990s following numerous conflicts in the region including the Bosnian and Kosovo wars. They claimed Asylum as Kosovars and where granted Indefinite Leave to Remain and British Citizenship based on this deception.
The Administrative Court and the Court of Appeal had upheld the Secretary of State’s decision that she was right to declare the Appellant’s British Citizenship null and void from the outset because it was gained by deception.
The issue before the Supreme Court was “whether the misrepresentation made by the Appellants in their applications for United Kingdom citizenship made the grant of that citizenship a “nullity” rather than rendering them liable to be ‘deprived’ of that citizenship under Section 40 and 40A of the British nationality Act 1981.”
What is the difference between ‘nullity’ and ‘depriving’?
The issue of nullity in these cases is vitally important because if the Supreme Court upheld that the Appellants’ British Citizenship was null and void from the outset, there would be no right of appeal as the Appellants’ citizenship never existed. However, if a person is deprived of citizenship, they will have a right to appeal the decision, as citizenship does exist but has been stripped.
The Supreme Court Judgment
Lady Hale stated that declaring citizenship a nullity was appropriate where someone impersonated an actual person, i.e. falsified the documents of someone who had died and passed themselves off as that person. In these circumstances, the applicant never meets the eligibility requirements of British Citizenship; it is the deceased person who does.
The judgment stated:
“Those [previous] cases, and the Court of Appeal’s decision in this case, were based on the principle that there is a category of fraud as to identity which is so serious that a purported grant of citizenship is of no effect. But, argues the Secretary of State, the courts have not articulated any clear or principled definition of the types of fraud which will be so serious as to have this consequence. In the current cases, for example, neither appellant pretended to be someone he was not. Mr Hysaj used his real name but put forward a false date of birth, nationality and place of birth in gaining his ILR and gained citizenship on the basis of the ILR that he himself had obtained. Mr Bakijasi used a false name in gaining his ILR but otherwise gained citizenship in the same way. Ouseley J held that the key characteristics of identity for this purpose were the name, date of birth, and nationality or the country and place of birth, because this was the information on the certificate. But he also held that there had to be fraud – innocent mistakes or misunderstandings were not enough (paras 46, 47). Such uncertainty means that the law is difficult to apply in practice. It also has a number of illogical and unsatisfactory consequences.”
What the Consent Order means for those affected by their British Citizenship being declared a nullity
The Consent Order states that the Secretary of State for the Home Office must return to the matter and make another decision on the Appellant’s citizenship which does not involve declaring it null and void. She may, therefore, make an order to deprive Albanian citizens British Citizenship where the granting of that citizenship was based on deception.
However, depriving a person of British Citizenship comes with a right of appeal, most likely under section 40A of the British nationality Act 1981. Most importantly, the children of those who were granted British Citizenship are likely to still retain their status even if their parents are deprived of citizenship. If the Home Office had succeeded in having the parents’ British Citizenship declared a nullity, as it never existed, it would not be possible for any decedents to be granted citizenship by birth.
If you are an Albanian national who came to the UK under the circumstances outlined above, it is crucial you get in touch with an experienced immigration lawyer to obtain advice on the next best steps to take regarding your citizenship.
At OTS Solicitors, our immigration lawyers based in London have a wealth of experience in dealing with these types of cases. Some of our clients have had their proceedings stayed until the results of this decision became known. If you choose to instruct us, we can work out a strategy to ensure, following this ground-breaking consent order, your best interests regarding your citizenship are protected.
OTS Solicitors is one of the most respected immigration law firms in London and is Legal 500 leading firm. By making an appointment with one of our immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today. Contact us on 0207 936 9960 to speak to one of our immigration consultants.